The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under

The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)

The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.

The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries – http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt). The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

A full parliamentary enquiry into concussion in sport

A coherent set of concussion protocols covering all sports

Independent peer-reviewed research into concussion and British sport

Better co-ordination between sports, schools, colleges and doctors

A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

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About Kris

Kris is an Associate Professor of Sport Law, and Co-Director of the Centre for International Sports Law (CISL) at Staffordshire University, UK. He originally trained and competed as an elite gymnast until a shoulder injury at university forced him to retire as an active competitor. He now spends his spare time coaching Trampolining, Gymnastics, DMT, Cheerleading, Parkour and anything that involves throwing yourself through the air with various degrees of twist and rotation!

About Jon

Jon is an Associate Professor, and Co-Director of the Centre for International Sports Law (CISL) at Thompson Rivers University, British Columbia. Jon worked as a climbing guide, trained and coordinated search and rescue, managed risk and sales in the United States with a European-based manufacturer of outdoor equipment and advised recreation programmes on their exposure to legal risk. His extra-curricular background is just as diverse and includes stints playing semi-pro volleyball in Brazil, researching wolves in the Canadian Rockies, climbing and leading expeditions from Alaska to Argentina, Tajikistan to the Tetons, and many points in between. He has been married to Wendy for 15 years and together they have 2 wonderful kids – Tegan (10) and Brock (8) – whom he continues to emotionally scar as their football coach!